Criminal Conviction In South Africa For Posting A Movie To The Pirate Bay

from the disproportionate dept

A few years ago, we wrote about an insanely aggressive anti-piracy campaign in South Africa, in which the local version of the RIAA (RISA) suggested people "shoot the pirate." That hyperbolic and ultra-aggressive campaign resulted in some actual violence, when RISA sent a group of artists (armed with that slogan) onto the streets to "confront" counterfeit CD sellers. So, perhaps it shouldn't come as a huge surprise to find out that a man in South Africa has been criminally convicted for posting a torrent for a local movie to the Pirate Bay, and given a suspended prison sentence.

There's a reason why most copyright infringement should be handled under civil litigation, rather than criminal. But, apparently authorities down in South Africa are trying a more aggressive path. While the guy had his sentence suspended because he apologized and helped to remove the work from being accessed via the Pirate Bay, it's hard to see how this is even close to a proportionate or reasonable response to someone sharing your movie. Meanwhile, it seems worth noting that up in Nigeria, a massively successful film industry has been built over the past few decades, in part because piracy helped solve the distribution problems the industry faced. Perhaps South Africa might want to think again before throwing fans behind bars for sharing a local film they liked.

Reader Comments

you can bet your ass that they were ably advised and assisted by the industries here! think about how we all said that things would never get to the stage of massive fines, bankruptcy for the accused, loss of job and family along with home, no prospect of employment, criminal charges, prison sentences. everything we said wouldn't happen has happened. the industries have got governments and courts wrapped round their fingers! the next step is capital punishment! think it wont happen? give it 12 months then tell me! unless governments are brought back down to earth and they force the industries to do the same, we are heading straight for that scenario! and it scares the fucking crap out of me!!now think about what Obama is up to and the deal he is getting Japan to agree to and how that is going to fuck the 'net for all except those that are allowed to use it, with severe punishments in return but still nothing against the companies that abuse the 'take down' process, for example. the whole aim has been to get control of the 'net. it is on the brink of happening and when it does, boy are we gonna suffer for it! there wont be any need for 'super fast broadband, no ordinary person will be allowed to use it!!!

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S.A. vs. U.S.A: their maximum fine is less than our minimum

When it comes to copyright infringement, it's actually much cheaper for the original uploader to be convicted criminally in South Africa (0-$500US fine) than for a torrent downloader to lose a civil suit in the USA ($750-$150,000 per infringement).

Awesome! It's about time!

It's a criminal act. How many times do we hear loons around here blather on about how we should go after the real criminals not the innocent downloaders. Go after the seeders, the ones who are actually doing something wrong. Well thank goodness, someone listens to the folks around here. The cops went after the person who's actively breaking the law and now that person is in jail.

I think this is a great change. It's about time the artists were afforded the same police protections as other workers. Why should the police just concentrate on crimes against the work product of craftsmen, cooks and other professions? Why not protect the work of artists too. It's only right. If you want a world with art, you have to protect those who create it.

Re: Awesome! It's about time!

Makes for a nice soundbyte, but how often are the creators actually protected by cracking down on piracy, rather than the copyright owners?

How much of the money from cases like his, the hundreds of thousands in fines levied against pirates, how much of that makes it's way to the creator, rather than just funneled into more lawsuits, more bought laws?

If the amount tops even 10% I would be insanely surprised, copyright isn't about protecting content creators in the slightest, only copyright owners, and only if they're big enough.

Re: Re: Awesome! It's about time!

Dude-- The creators are the copyright owners. That's how copyright works. And sometimes they choose to sell the copyright to others-- like the big conglomerates you like to vilify-- but the only way these conglomerates have the money is if the market works. The money flows down to the creators-- and if it doesn't they can keep the ownership for themselves.

And I don't care about the percentages. I know that in every business, the cost of marketing and fulfillment is significant. I don't mind sharing because I need the conglomerates to have a chance at success. I would rather that 10% of a decent pile than 100% of next to nothing.

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but the only way these conglomerates have the money is if the market works.

Or they purchase laws that makes it so people are forced to give them money, like the 'you must be a pirate' taxes.

The money flows down to the creators

Right, which is why we haven't seen any cases where big name artists are forced to sue their labels in order to actually get paid, and if they're willing to do that to the big name acts, you can be sure they have no problem doing it to the 'lesser' ones.

and if it doesn't they can keep the ownership for themselves.

Assuming they haven't already signed a 'deal' where they're forced into handing over ownership in exchange for mostly empty promises of 'fame' and 'fortune'. If they're lucky, they catch those particular clauses before signing, and have enough cloud to have them removed, but for those that signed when there were no other options, they're pretty much screwed.

And I don't care about the percentages.

So you don't actually care if the artists, the people who are supposedly the driving force behind the laws and lawsuits, ever see a cent of the proceeds, good to know who you're actually interested in supporting.

I don't mind sharing because I need the conglomerates to have a chance at success.

If the only way you can succeed with your creation is via a huge company, that doesn't mean the huge company is needed, it means your creation sucks and no-one wants it. There are plenty of people out there who have no problem making it without a huge company, and it's because people like them and want to support them and reward them for their works.

Also, keep in mind the vast majority of people who sign with those 'conglomerates' get little out of the deal other than a big fat nothing, and that's if they're lucky.

I would rather that 10% of a decent pile than 100% of next to nothing.

Sucks to be you then, since what you're getting is 100% of nothing, since none, or effectively none, of the money gained from 'fighting piracy' ever makes it back to the actual artists, and is instead just funneled straight back into the legal teams and more lawsuits.

For being justified as 'protecting the artists', the artists don't seem to see any real benefits from the results, funny that no?

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Well other than the fact that if I want to buy a hard-drive, CD, or other blank media I'm forced to pay extra just in case I might pirate something in the future.

Regarding your baseless accusations(or perhaps projection, anything you'd like to get off your chest there bob?), when it comes to the major labels or studios, I do exactly as you suggest, 'Do without', and refuse to buy anything put out by the big labels or studios. As far as I'm concerned, they could cease to exists tomorrow and I couldn't care less.

And you know what that means? It means they get a big fat nothing from me, now and in the future. They don't get my money, they don't get my time, and they don't get my attention or interest.

Which is not to say that I don't spend money on entertainment, I pick up plenty of stuff to listen to, watch, and read, I just do it on my terms, and do my best to make sure my money goes towards creators and companies that actually care about their customers, rather than hold them in contempt and automatically assume the worst of them.

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"You're not forced to give anyone money."

You've never heard of blank media levies, collection agencies who collect money for people who aren't members (and who keep the resulting revenue for themselves) and the attempts to those you worship to force the same on to everybody's internet connection?

Re: Awesome! It's about time!

Now only millions more to go. I hear we might eventually get China to extradite! I also can't wait to raid the offices of Google - finally, some progress!

"It's about time the artists were afforded the same police protections as other workers"

Just not derivative artists. All in the name of the "only acceptable" form of prior restraint: ownership of expression. Copyright IS prior restraint in a nutshell.

Cooks don't EVER sacrifice other cooks' finished meals in the name of preserving their own finished meals on the grounds of "there's no other way!", crushing the life, liberty and property of "derivative cooks" in the process. So yes. Maybe artists do need to be treated equally to them. But I don't think that is what you were intending. "Equal rights for ALL artists" rings so much better than just "equal rights for artists", no?

Picture if you will, James Damiano stamping on Bob Dylan's face while all the while flying a campaign flag with the words "I Respect Music!" on it to see what I mean.

Copyright can't even get the fucking radio stations to pay musicians. It's a world of make-belief. I have no time for utopias.

With crowdfunding, original artists AND derivative artists have their rights protected against anyone who restricts them, and that includes copyright advocates. With it, they can BOTH ask for whatever price that THEY BOTH choose with their OWN works. You are leagues behind me even through your own lens.

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Copyright is prior restraint of plagiarism. If you're going to actually get off your duff and express your very own opinions, I can guarantee that copyright won't restrain you. But somehow I think that you've been hanging out with the bad influences around here who think that tormenting some movie is the moral equivalent of giving a speech like Martin Luther King.

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"Copyright is prior restraint of plagiarism."

Copyright and plagiarism are two separate issues. One is an economic theory. The other is an issue of libel and defamation. When you mix them together pointlessly, you get confusion in the form of Cindy Lee Garcia. Because of her, copyright believers will soon have no choice but to separate the concepts of copyright and plagiarism/libel by force.

And as a matter of fact I think the makers of said torrented movie do have a right to gain something, while the downloader has no moral grounds to take the work without giving anything in return.

My dispute, which I hope is clear to you, is simply the means to which the artist protects his property. Not the question of "should his property be protected".

And putting up a crowdfunding paywall is a far better way of doing it than copyright. No pirate can ever take from the artist if the artist demands the pirate pay first.

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Actually, the crowd funded paywall also needs copyright. Otherwise the freeloading scum can just come along afterwards and take it for free. Copyright is needed to protect the good people in the crowd who came forward to support the artist.

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But I repeat: not if the artist asks them to pay BEFORE creation. That's the point of the assurance contract. No one can free-ride if they are forced to pay. Bearing in mind that the artist can't get everyone under copyright anyway (second hand sales, pirates unable to be caught anyway, Google, China, torrenters, royalty-cheaters, radios, etc).

He can also ask corporations to do so too (remember, the corporation's traffic and revenue depend on the art as well, so they'd be happy to pay quite a lot into the "hat" too in order to get the art to exist in the first place and hence get the traffic - whereas with copyright they could exploit the artist's hopeless trust in copyright's empty promises of property protection).

"Game theory" effects won't kick in, because any pirate trying to "wait it out" without paying will soon find out that everybody else will be thinking likewise. Therefore the pirate would rather chip in to avoid the tipping point - he wouldn't have a choice. In other words: the pirates as a whole are responsible for their actions because the art's existence depends on their paying.

That applies to the corporations too. One corporation couldn't wait on the other corporation to pledge, else the artist would simply say "nope, I'm not doing it - the other corporations have to put in their fair share, too, else no art and profit at all buddies!". All corporations would eventually recognise that all their profits are at stake, and hence all corporations will in the end put in their fair share, under the agreement of what we might call a form of "Mutually Assured Destruction".

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"Copyright is needed to protect the good people in the crowd who came forward to support the artist."

Bullshit. The fact that some people pirate does not preclude me from giving money to the artists I support, stop me from buying the DVDs I buy, etc. It has always happened, and the fact that my neighbour has a pirated copy of Gravity did not in any way prevent me from buying the Blu Ray.

However, the misuse of copyright to try and force things like regional windows, DRM, etc. DOES stop me from giving money to an inevitably inferior product.

Try living in the real world at some point, it's easier than inventing fantasies.

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"Copyright is prior restraint of plagiarism."

Umm, no. Just no. You're conflating two very different things. Plagiarism is when you are claiming to product work that was actually produced by someone else. Copyright is intended to prevent other people from distributing the work produced by someone else, not claiming that you made it yourself.

The limit

Just look at the internet today and see what is trending on most websites, people are getting more and more angry at the corruption and are now starting to talk about resolving this once and for all. If anything I believe the time is ripe for people to come out of the woodwork and actually do something that shows the governments around the world that they are not going to take it any more, The EU has stepped very carefully when it comes to net neutrality as they know that if the EU rises up it could destroy the entertainment moguls control over content completely.

It is sad that the American people have become irrelevant to the government and big business when it comes to big profits and forcing people to play three times for the same service, damn, I would not be surprised if in the near future they are forced to pay four times for the same service . I.e pay for a connection to the internet pay for all the fees and taxes US isp's charge again for access, pay for Netflix and pay extra to enable access to Netflix above the charge for access to the internet.

Seeing that the US is the only country in the world that charges for receiving and making calls and texts messages it is no surprise, but people are getting very despondent , especially when a place like the FCC, who are paid from taxes to protect the US citizens rights just ignore the citizens and change the laws to do nothing but make big business much much much more money

It's a criminal act. How many times do we hear loons around here blather on about how we should go after the real criminals not the innocent downloaders. Go after the seeders, the ones who are actually doing something wrong. Well thank goodness, someone listens to the folks around here. The cops went after the person who's actively breaking the law and now that person is in jail.

What a joke. For years the piracy apologists have been saying to go after the seeders and leave the poor downloaders alone. And when it happens, we get Masnick's full-throated snivel.

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It's okay, I only skimmed the article too. I mean, who's got time to read, those angry, fact-void comment aren't going to write themselves you know!

Had you actually, I dunno, read the article before commenting, you'd know that the complaint isn't 'They're cracking down on those actually responsible!', it's 'And they're doing so using criminal, not civil law to do so, which is completely insane'.

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Had you actually, I dunno, read the article before commenting, you'd know that the complaint isn't 'They're cracking down on those actually responsible!', it's 'And they're doing so using criminal, not civil law to do so, which is completely insane'.

Not insane at all. Criminal charges are cracking down. Much more so than winning a civil judgment against some pasty-faced, basement dwelling Mama's boy who will never have the wherewithal to actually pay a civil award. And if you bothered to read the article you'd note that he didn't even get sent to jail- despite Masnick's disingenuously implying he did:

"Perhaps South Africa might want to think again before throwing fans behind bars for sharing a local film they liked."

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Now now, there's no need to assume that everyone else online is in similar circumstances as yourself, that's just uncalled for.

And if you bothered to read the article you'd note that he didn't even get sent to jail- despite Masnick's disingenuously implying he did:

Given he plainly noted that the only reason the one charged didn't get sent to jail was because he basically plea-dealed his way out of it, it's not disingenuous at all, jail is on the table for the 'terrible' crime of file-sharing, right alongside crimes with actual, provable harm, like assault and robbery.

The fact that anyone, even for a moment, considers the act of copying a file to be as serious a crime as attacking someone, that is the ridiculous part.

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Exactly. And by the end of the piece he's inflated a suspended sentence into something that puts "fans" "behind bars." Oh really. Notice how he doesn't say "customers" any more because he's finally realized that pirates aren't customers.

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"And by the end of the piece he's inflated a suspended sentence into something that puts "fans" "behind bars.""

Because that was the sentence he was given, and suspended does not mean he won't get sent there, it just means he's given a temporary reprieve. He will be behind bars for this crime if he slips up, as could the next person caught.

"Notice how he doesn't say "customers" any more because he's finally realized that pirates aren't customers. "

Some are, indeed many are. This particular person wasn't, at least not in the case of this specific movie.

Facts are difficult for you to comprehend, aren't they?

"I wonder if he calls rapists "fans"?"

I wonder if he calls cars "broccoli". That makes as much sense and is just as much related to the facts as what you just said.

Oh, and you really have to have a mental defect if you think that copying a movie and physical rape are the same thing requiring the same punishment. Perhaps an indication of what you really want to do with your spare time when you're not trying to defend the indefensible actions of corporations.

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Insulting and telling, shows how they see 'fans', as nothing more than walking, talking wallets, sources of money, and nothing else. To people with that outlook, unless you're giving them money, you don't matter to them.

Good job SA police and governemnt

I mean, if they're spending this much time, money and effort cracking down on piracy, that means they've eliminated all those trifling crimes like assault, armed robbery, carjacking, murder, rape, and all those other, minor crimes, opening up the resources to go pirate hunting, right?

Re: Good job SA police and governemnt

"While the guy had his sentence suspended because he apologized and helped to remove the work from being accessed via the Pirate Bay, it's hard to see how this is even close to a proportionate or reasonable response to someone sharing your movie."

This statement is a disappointing on so many levels. The argument for piracy is generally access. I can't get the content in my country or it will come out maybe next year or never in my country. These are valid complaints. Here, A LOCAL film was placed on piratebay by someone in his country. What the author fails to note: the upload of the film occurred before the film was released. Two months before the producers where able to officially market and release the film, the local market was flooded with counterfeit dvds, decimating the commercial market for the film and ability of the producers to the opportunity to recoup their investment. This is not a case of a file-sharer downloading a movie. S 27(1)(f) of South African law explicitly states such behavior illegal. Perhaps it would be easier to justify his actions, and piracy in general, if it were simply " someone sharing your movie."

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"So you agree that jailing this guy should have been prioritized over the other crimes rife in South Africa, including rape and murder."

No. I don't and said nothing of the sort.

"It's no wonder your friends like bob enjoy paralleling copyright infringement to rape. Your brains actually think the former is just as bad as, if not worse than, the latter."

I am not bob. I don't think every Anonymous Coward is the same person and I think it quite obvious that we are different individuals with differing beliefs. There are many infractions of the law that are commercial in nature and are also criminal violations.

"Horrific doesn't even begin to describe the intellectual travesty."

I think the intellectual travesty occurring is linking my comment it to another's. If the movie was not released then the copy he received to upload was stolen. If he knew the movie was not released he was aware of receiving stolen goods. I must assume you think his actions were not criminal in nature.

Re: Re: Re: Re: Good job SA police and governemnt

So what was the point of responding to a comment about the priorities of local law enforcement? Is that not supposed to be an indication that you disagree with the statement and posted a complaint about the article's sentiment as a response?

Re: Re: Good job SA police and governemnt

Large-scale counterfeiting(counterfeiting mind, not just putting a file online, that's something different and should be treated as such) like that I'd say would be one of the few cases where hefty fines would be reasonable, though only to the extent of 100%, maybe 200%(rather than the US version of 'Buy a song, it's worth a buck. Download a song, suddenly it's worth tens of thousands of dollars') of the amount the seller made, paid directly to the producer.

That way any potential loses are balanced out, and the guy who was guilty gets a grand total of $0 out of it, if not taking a decent loss(and if they know that they could lose everything they made from it and then some, people are less likely to do the same in the future. 0 profit = decreased motivation). Once the counterfeiter is off the market, introduce the legitimate good as normal, and things should get back to normal.

However, if I'm understanding you correctly, he may have put the file up, but other people were the one selling DVD's of the film. In that case I'd say charge the ones selling the counterfeit DVD's as mentioned above, but charge the one who posted the file for simple copyright infringement, which should be treated as a civil, not criminal matter(whether it's illegal isn't the question, the severity of the crime is the sticking point here).

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His was "copy zero," if you will. All of the infringement was traced back to him and the way the law is written in South Africa, his actions incurred criminal culpability. His sentence was suspended and he is not currently in jail. Apparently he received his copy from someone working on the project and the suspension of his sentence was do to him identifying where he got his copy. I do think his actions were quite serious and potentially caused thousands upon thousands of dollars of damage.

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I do think his actions were quite serious and potentially caused thousands upon thousands of dollars of damage.

Oh I'd agree that posting a movie before it's even released is a serious thing(though not to a 'criminal, potential jail time' level), though the 'potentially' bit is where I'd disagree.

Proving such would be rather difficult I'd think, and unfortunately for you, you'd have to make an iron-clad argument as to just where each 'lost' dollar(or the local equivalent) went, since after decades of the 'entertainment' industry claiming 'losses' of billions on a yearly basis due to piracy(and yet constantly making record sales, funny that), pretty much no-one buys the 'loses' numbers tossed out anymore.

Now, did his actions and the results from them keep some people from seeing the movie when it was officially released? Yeah, I'm sure for at least some people the digital version was enough, to the point that they were no longer interested in the genuine product. However, at the same time it's quite possible that it made others, people who might otherwise not have bothered with it, interested enough in the film to want to check it out when it was actually released.

Figuring out whether or not something like that was a net gain, or a net loss, is rather tricky, and all but impossible to track.

Re: Good job SA police and governemnt

"I mean, if they're spending this much time, money and effort cracking down on piracy, that means they've eliminated all those trifling crimes like assault, armed robbery, carjacking, murder, rape, and all those other, minor crimes, opening up the resources to go pirate hunting, right?"

On that note, I strongly recommend seeing this film which gives an idea of how bad these trifling crimes are in SA, especially when compared to the far worse criminal act of copyright infringement.

If the entrainment companies want this, I want to see the next time they steal someone's content as so often has been reported here, going to court to defend themselves against criminal charges. There's a whole lot of that goes on behind closed doors intracompany. Not to mention the stealing of photos and recordings elsewhere.

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Personally, I think it has to hinge on scale and commericiality. If someone has set up a business earning money by selling copyrighted goods that he doesn't have the rights to, some amount of jail wouldn't be unreasonable.

However, running some website where you can download a copyrighted song at no charge but it has a banner ad? Not commercial.

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My phone kept making my submit button appear where I was typing hence the blank comments!

Anyway, quite simply if consider it a crime where something has been taken, fraud has taken place or significant illicit gains have been made.

So, someone selling 20,000 pirated DVDs is a criminal. Someone copying a book and selling it as their own work is a criminal. Someone taking the copyright of another through legal shenanigans is a criminal.

Someone copying a file as they might have lent a VHS or record to a friend in the past? No